Tuesday, March 29, 2005

The corruption of the judiciary

March 29th

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The corruption of the judiciary

Rajeev Srinivasan

All of us have an image of the judiciary as uncorrupt and morallyupright. The scintillating performance of Jean-Louis Trintignant asthe judge in the Costa-Gavras classic Z, quite possibly the best political film of all time,comes to mind. Then there arethe legendary judges of the US Supreme Court, such as Learned Hand andBrandeis, handing out opinions with gravity and dignity. Landmarkcases in the last fifty years in the US, such as Roe v. Wade onabortion rights, and Brown v. Board of Education on civil rights,stand out for their imposing authority.

There haven’t been such sensational or precedent-settingcases in India; nor do the names of exceptional judges in India leapto mind. That may simply be because the media do not make stars out ofIndia's judges, who quietly go about their business. The general impression is that India's judges are competent, incorruptible, andhonorable.

But recent events call this into question. Is the Indian judiciarybecoming a reflection of the society itself? That would be a disaster,because the other pillars of the establishment have shownthemselves to be brutal, predatory and dishonest: the executivebranch, the legislature, the police, the media and academia. Thecourts, and the Army, have been seen as the last refuges of decency andhonesty in India.

Corruption has become endemic in middle-class India. In most societies the upper classes are manipulative anddecadent; the lower classes often unrefined and brutish.It is the middle-class, the bourgeois, that tends to be the honest, ifrather boring, segment of society. It appears, alas, that moralcorruption has eaten into the soul of the Indian middle-class.So maybe it is not surprising that the judiciary reflects the samevalues. I hasten to clarify that this is not a blanket indictment,only some individuals are corrupted. But it is saddening, nevertheless.

There were instances during the Emergency when the SupremeCourt did what the government told it to; but it is perhaps unfair to expect the court to not be intimidatedby a government that assumes vast punitive andcoercive powers.

More recently, there has been a rash of 'commissions' to investigatevarious things, many of which provide employment for retired judges. The job of a 'commission' supposedly toarrive at the objective truth of the matter, but there is also an alternative dictionary meaning for the word: 'a fee foran agent for services rendered'. Some ‘commissions' do give the impression ofbeing instruments to provide post-facto justification for a conclusionthat has been arrived at a priori: hardly something that inspirestrust.

The first Commission whose results I looked at askance was the JainCommission of some time ago, which cast aspersions on the patriotismof Tamils, and didn't really enlighten us all a great deal about theconspiracies behind Rajiv Gandhi's assassination.

The most recent errant Commission is the BanerjeeCommission, which has produced with an uncanny sense of timing aninterim report on the Godhra incident. It suggests that the incident wherein 59 women and children were burned to death incoach S-6 of the Sabarmati Express on that fateful February day wasmerely an unfortunate accident, and not caused by malafide intent.

There is quasi-scientific evidence – or at least an urban legend – to support the BanerjeeCommission's findings. This is the strange phenomenon known as'spontaneous human combustion'. A human being, hitherto normal, allegedly startsburning for reasons unknown, and is soon reduced to ashes. Doubtless,there were several simultaneous acts of spontaneouscombustion inside coach S-6. Surely, this is an unfortunate accident.Act of God, if you are a believer.

Incidentally that would explain the Best Bakery incident too. Theremust have been spontaneous combustion of a person there, and the gascylinders stored in the bakery must have caught fire and incineratedother people. I am sure Justice Banerjee will soon produce anopinion on spontaneous combustion in the Best Bakery case, so that itcan be closed as an unfortunate accident, and the nation sparedfurther agony.

The Best Bakery case, regardless of Justice Banerjee's eruditeforensic science, is another example of the bizarreness of the Indianjudicial system. In any nation other than one that deserves to becalled a banana republic, this case would long ago have been declareda mistrial.

Consider the facts: a case that has been tried repeatedly, toaccommodate a persistent individual, Teesta Setalvad, who managedto get it moved to a court where she believes she has an advantage.The principal witness, Zahira Sheikh, has reversed herself so manytimes that it is utterly unclear what the truth is. And Sheikh hasclaimed intimidation, fraud and forgery by Setalvad, who was up untilrecently her apparent savior. If proved, witness intimidation is aserious offense, and should automatically lead to a mistrial.

In particular, as of March 29th, Sheikh has petitioned the Supreme Court to probe Setalvad's assets, alleging that the latter's NGO Communalism Combat is actually a profit-making front for her company Sabrang, and is intended to subvert government regulations on the transfer of funds from abroad. Further, Sheikh said that the US had set aside millions of dollars for funding litigation in Gujarat (why, one surely wonders), and that she wanted to "explain to the world at large the exploitation in the name of secularism and protection of Muslims by persons like Setalvad."

Since the principal witness’s testimony has proved unreliable, there are sufficient grounds for declaring a mistrial. In fact, in a fair court system, bothSetalvad and Sheikh would be hauled up for contempt of court, and ordered to repay the costs to the Stateof having spent a lot of time and energy on this obviously improperly handled case.

It is apparent that the Best Bakery case is politicallymotivated, and that the objective is not quite to arrive at the truthbehind what actually happened there. Indeed, in a flagrant breach ofjudicial propriety, a sitting Chief Justice of the Supreme Courtpublicly offered his political opinion on the case, which is improper in something that is sub judice.

The whole business of sub judice is handled rather oddly by the Indianmedia and establishment. If a case is under legal consideration, thejudiciary must not opine: that is the law and thecustom, lest they influence those involved in the case. That does not mean the common man or the journalist must be silent. On the contrary, they have everyright to discuss the publicly known facts, provide opinions, anddebate it to death. But inIndia, nobody outside the court system talks aboutit ("mustn't invite contempt of court")yet judges feel free to air their opinions.

The actions of the Tamil Nadu High Court in the Kanchi case have notbeen particularly upstanding. Nor were the media's, and this washighlighted by an opinion in the Andhra High Court, which, notsurprisingly, did not get much airplay, except for an article by S.Gurumurthy (“Will the ‘secular’ media heed Justice Reddy’s warning?”, New Indian Express, January 14, 2005). Here was a judge doing what he is supposed to do: provide a powerful opinion on acase that came to his court. But Justice Narasimha Reddy got nokudos for his pains.

In addition, there is a tendency in India to use the Supreme Court todecide on matters in which the court has no technical competency. Forinstance, why on earth is the Supreme Court supposed to decide on theheight of the Narmada Dam at exactly so many meters? The business of the courts is strategic: it isto determine if there is constitutional or legal precedent or reasonto allow the dam to be built. The details, the tactics,must necessary be the role of the executive branch.

The argument, of course, is that the executive branch is weak orincapable. But that should be no reason for the court to not lob theball back into the government's court. With a staggeringly backloggedcase load that will take thirty years to clear even if no new cases werefiled, the judiciary should firmly refuse to get caught up inexecutive matters.

Finallly, the Indian Supreme Court isburdened with the pettiest of cases. The USSupreme Court is only called upon to decide the weightiest cases,after due consideration by a series of lower courts and only after theexhaustion of all other avenues. For instance District Judge Colleen Kollar-Kotelly ruled on the Microsoft anti-trust case, a significant trial. District Judge Marilyn Hall Patel in San Francisco too has ruled on some major cases.

Why isn't India’s Supreme Court strictly theapex body? Even trivial cases, for instance certain Public Interest Lawsuits of no merit whatsoever, areroutinely brought before it; this is appalling. De minimus cases like the petition by Kuldip Nayar and Praful Bidwai about the ‘human rights’ of Pakistani terrorists shot in Delhi go direct to the Supreme Court. Why?

The Indian judiciary is not quite the fine,upstanding entity we would like it to be; this is unfortunate, as thisentity of last resort should be something that the man on the street can always trust to be impartial and just.

Besides, the comparison of contemporary India with the Greece of Z is not out of place: there is a fascist left-wing establishment in India that is, in effect, sabotaging democracy. To quote Judge Learned Hand, “If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice”. Is the Indian judiciary rationing justice only to a chosen few?

Some questions consistently bother me always. Why is Hindu society so much taken-for-granted ? Why are we so weak that a wretched individual like Teesta with no real standing makes a career out of rubbing salt on Hindus & gets away with it so easily? Why does she not fear a Hindu backlash at all ? What makes her so confident that no action would be taken against her & she can take the entire Judiciary system for a ride ?

It boggles my mind when i read & hear stuff about her. Why does it take a half-educated muslim girl to stand up against her ?What do we really lack ?

The other day after watching "Schindler's List" it was hard for me to convince myself , how could 6 million jews be killed by a single regime ? Why could not the jews revolt or even attack ? What was stopping them, since anyways they were going to die ?

Are we seeing a similarity between Hindus & Jews here ?

Right under our noses a Roman Catholic women is made a Goddess & rules our country through proxy. More then 300,000 Hindus become homeless. Hindus organisations are constantly vilified by a sustained propaganda by the media which incidently is pre-dominantly Hindu.Our supreme Spiritual leader is humiliated.Supreme Court, our highest court's verdict (Shah Bano) is over turned , just so that a few Muslim maulavis don't feel outraged.

I mean what makes us Hindus so bloody weak that a rouge nation like Pakistan makes us crawl on our knees , make us beg for peace ?

Are we ourselves not responsible ? Why don't we have a single rallying point behind which the entire Hindu's might can be put ?Why do dalits choose to be dalit & yadavs choose to be yadavs & brahmins choose to be brahmins rather then Hindus ?

If Pakistan or China attacks us how many of the one billion population will actually support our army ?

Ultimately it will boil down to a few Hindu organisations providing moral support to our jawans.

There's something inheritently wrong with us. And unless we find our weaknesses & tackle them upfront, the Teestas,Kuldeep Nayars,Praful Bidwais,Vinod Mehtas,Shabana Azmis will have a field day.

We need to look inside. There's whole lot of undesirable traits within us.

The Hindus seem to be blissfully ignorant of us being a majority. Most of us choose not to even talk about the injustice being done. Why do we care about Kashmiri Pandits or Shankaracharya or Women burnt in Godhra ?

It just does not affect us.===============================

P.S: On the day of the Godhra carnage, i was in office & heard the news from one collegue. He was all smiles & was telling me the event in the most casual manner. These were his exact words "Puri bogie ko uda daala salon nay :)))) " & he was laughing.There was no depression. No disgust. No shock.That chap for me personified a typical Hindu as we have today.

Here is my personal experience:I was discussing with a Tamilian about the Kanchi Shankaracharya issue and he said the Acharya must have been guilty. The next day, I happened to read a book which claimed Mother Teresa was a hype and did precious little. When I mentioned this to the same guy, he said that it must be false propoganda. He asked me how I could believe such nonsese. I immediatly confronted him asking why he was willing to give benefit of doubt to Mother Teresa and not to Shankaracharya.I think we Hindus have been brainwashed to think that while Hindus could be wrong, the others are never wrong. So Hindus invaraibly fail to stand up to Hindu cause.

Rajeev...good article. Speaking of judicial responsibility, I have been following the case of Terri Shiavo in the United States and how her parents have relentlessly knocked on every judicial door possible.

I was amazed how things worked like clock work and how the US congress allowed for the case to be heard by the federal courts. More amazing is that even though the federal courts were asked to review the case, they did not get tempted to step in and instead upheld the lower court's ruling.

Even the Supreme court refused to step in even when petitioned a number of times by the parents of the dying Terri Shiavo.

I was amazed by the objectivity and the judicial integrity of the american justice system in this case.